Question of the Day

Should President Trump pardon Michael Flynn?

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On matters of war and peace, the U.S. Constitution speaks in prime colors, not pastels.

President Donald Trump is prohibited from pre-emptively attacking North Korea without express congressional authorization to retaliate against Chairman Kim Jong-un’s verbal thunderbolts. But the president may attack unilaterally in self-defense to answer sudden North Korean aggression with the use of military force proportionate to its provocation.

The War Powers Resolution of 1973 (WPR) does not disturb these twin precepts. Section 8 (d) (1) of the WPR declares: “Nothing in this joint resolution—(1) is intended to alter the constitutional authority of the Congress or of the President…”Article I, section 8, clause 11 of the Constitution empowers Congress “to declare war.”

Every participant in the Constitutional Convention and state ratification debates understood the Declare War Clause to prohibit the president unilaterally from crossing the Rubicon from peace to war. The president was, however, empowered to repel sudden attacks. At the convention, James Madison, father of the Constitution, prevailed in proposing that congressional power “to declare war” replace a power “to make war”… ”leaving to the Executive the power to repel sudden attacks [in self-defense].”

There, the aggressor places the United States in a state of war before the president acts.

The decision to entrust responsibility for war to Congress rather than the executive did not rest on contemporary technology or the Atlantic Ocean as a figurative moat. The war power was given to Congress because the executive at all times and in all places is inclined towards belligerency to aggrandize power and acquire fame. Mr. Madison elaborated to Thomas Jefferson: “The constitution supposes, what the History of all Govts demonstrates, that the Ex. is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl.” In Federalist 4, John Jay noted, “[A]bsolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects purely personal, such as thirst for military glory…”

In obtaining 10 congressional statutes to fight the Barbary powers, Jefferson informed Congress that he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.” Congress was responsible for authorizing “measures of offense also.” On that score, Jefferson echoed President George Washington instruction that congressional authorization is required before any offensive use of the military.

During the Cuban Missile Crisis, President John F. Kennedy interdicted Soviet vessels and quarantined Cuba in reliance, among other things, on a Joint Resolution of Congress expressing the determination of the United States “to prevent by whatever means necessary, including the use of arms, the Marxist-Leninist regime in Cuba from extending by force or the threat of force, its aggressive or subversive activities to any part of this hemisphere.”

Members of Congress are every bit as devoted to protecting the American people as is the President. It is absurd and counter-historical to believe Congress would resist a declaration of war when the nation faces imminent aggression. Abraham Lincoln explained that to permit a president to launch pre-emptive wars would be to license the White House to initiate war at will contrary to the original intent of the Constitution:

“Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion…and you allow him to make war at pleasure…If today he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him ‘I see no probability of the British invading us,’ but he will say to you, ‘Be silent: I see it, if you don’t….’ [War] our [constitutional] convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.”

Champions of the warfare state and multi-trillion dollar military-industrial-counterterrorism complex maintain that unimagined technological progress including nuclear tipped intercontinental ballistic missiles require presidential wars to protect the national security. If they have a persuasive case, they should seek a constitutional amendment under Article V that would transfer the war power from Congress to the Oval Office.

The amendment would need approval by two-thirds of the House and Senate and three-quarters of state legislatures. I am convinced it would be DOA in Congress. Americans do not want a king.